R v R

A husband may be criminally liable for raping his wife. Marriage neither supplies irrevocable consent to sexual intercourse nor exempts intercourse obtained without the wife’s consent from the law of rape.

The common law may evolve in response to fundamental social change. A court may remove an anachronistic common law fiction without impermissibly creating a new offence. The word “unlawful” in the statutory definition of rape is surplusage. It does not preserve a marital exemption or restrict rape to intercourse outside marriage.

The appellant was convicted at Leicester Crown Court, following guilty pleas, of attempting to rape his wife and assaulting her occasioning actual bodily harm. The couple were living apart, and the wife had indicated that she intended to seek a divorce. The trial judge ruled that any consent implied by marriage could be withdrawn by agreement or by the wife leaving the matrimonial home and clearly terminating consent.

The Court of Appeal dismissed the appellant’s appeal and granted leave to appeal. The certified question was whether a husband is criminally liable for raping his wife.

1. Appeal dismissed unanimously. Lord Keith of Kinkel delivered the leading speech. Lord Brandon of Oakbrook, Lord Griffiths, Lord Ackner and Lord Lowry agreed with his reasons. The certified question was answered affirmatively: a husband may be criminally liable for raping his wife.

2. Per Lord Keith, Sir Matthew Hale’s proposition that marriage gives a wife irrevocable consent to sexual intercourse no longer formed part of English law. Marriage is a partnership of equals. The conception that a wife becomes subject to intercourse in all circumstances is unacceptable. The reasoning of the High Court of Justiciary in S v HM Advocate 1989 S.L.T. 469 was equally valid in England. The only relevant question is whether the wife consented to the intercourse in fact.

3. The English authorities permitting prosecution only after a judicial order, separation agreement or comparable event exposed the artificiality of the supposed implied consent. Reg v Miller [1954] 2 Q.B. 282 produced the anomalous result that force used to obtain intercourse could constitute an assault while the resulting intercourse could not constitute rape. The indecent-assault cases demonstrated further distortions caused by the fiction.

4. Per Lord Keith, section 1(1) of the Sexual Offences (Amendment) Act 1976 did not preserve the exemption. In that context “unlawful” did not mean outside marriage. Such a construction would inconceivably abolish the already recognised exceptions for intercourse within marriage. The word added nothing to the requirements of absence of consent and the defendant’s knowledge or recklessness, and was surplusage.

5. The House was entitled to remove the exemption through development of the common law. It was not creating a new offence, but removing an anachronistic and offensive common law fiction. The order of the Court of Appeal was affirmed.

1. House of Lords: The appeal was dismissed unanimously, the Court of Appeal’s order was affirmed, and the certified question was answered in the affirmative.

2. Court of Appeal (Criminal Division): The court dismissed the appeal, certified whether a husband could be criminally liable for raping his wife, and granted leave to appeal.

3. Leicester Crown Court: Owen J rejected the asserted marital exemption on the facts. The appellant then pleaded guilty to attempted rape and assault occasioning actual bodily harm.